Considered and decided by Worke, Presiding Judge; Ross,
Judge; and Crippen, Judge.*

U N P U B L I S H E D O P I N I O N

ROSS, Judge

This case concerns the procedural treatment of one of four
people who allegedly took turns groping and having vaginal and oral
nonconsensual sex with an unconscious teenage girl before they abandoned her to
bleed extensively after one of them forced a partially crushed beer can into
her vagina. Appellant X.T.X. is one of
the four. He was 17 years old at the
time, is charged with first-degree criminal sexual conduct and other offenses,
and now appeals the district court’s order certifying the proceeding so that he
stand trial as an adult. He argues that his
lack of any record of juvenile delinquency or programming history and the
adequacy of both punishment and programming under extended juvenile
jurisdiction support treating him within the juvenile system. He also argues that the district court erroneously
concluded that he failed to rebut the presumption of adult certification and
that it improperly focused exclusively on the seriousness of the offense and
the limited length of time he would be subject to extended juvenile
jurisdiction. Because the district court
thoroughly and properly considered and applied the statutory factors for adult certification,
we affirm.

FACTS

In
November 2004 four males—two adults and two juveniles—went to the apartment of
two juvenile females ostensibly to socialize.
The two adults are suspected gang members. The state’s petition, the probation officer’s
certification study, and police reports provide the following account of the sexual
assault of one of the girls.

The
group, especially the girls, consumed a considerable amount of alcohol in the
apartment. One of the two girls passed
out in a bedroom, and the other allegedly removed the clothes from her
unconscious roommate and vaginally penetrated her with her fingers. She then urged her male visitors to take
turns sexually assaulting the victim. One
by one, the males entered the victim’s bedroom, found her mostly or completely
naked, and performed sexual acts on her as she lay unconscious. The first, a juvenile, allegedly vaginally
penetrated her with his penis and ejaculated inside her. He left her in the room for the next male,
X.T.X. Seventeen-year-old X.T.X. entered
the bedroom. He allegedly groped the
victim’s bare breasts and vaginally penetrated her with his fingers before
attempting for several minutes to copulate.
X.T.X. then dressed himself and left the victim for the next assailant. X.T.X. claims that he then left the
apartment.

One of
the adult males, an 18-year-old, immediately followed X.T.X.’s alleged
assault. He went into the victim’s
bedroom and put his fingers into her vagina and his penis into her mouth until
he ejaculated. The man then allegedly
inserted a beer can into the yet unconscious victim’s vagina, partially
crushing the can with the forced penetration and causing significant vaginal
lacerations. Either before or during
this part of the assault, the victim began to hemorrhage considerably. After this last assailant left the bedroom,
the roommate crudely urged the fourth male, who was 25 years old, to have sex
with the unconscious girl. He allegedly declined.

The
victim’s roommate decided that because of the victim’s profuse vaginal bleeding,
she should usher the males out of the apartment and clean up. The men left the apartment, but no one called
for emergency assistance. The roommate
cleaned up some of the blood and began to cook food on her stovetop. She either fell asleep or passed out, which,
fortuitously, allowed a wooden spoon to catch fire without her notice and
motivated an alarmed apartment manager to enter when he noticed smoke escaping
into the public hallway. He found and
pulled the two women from the apartment and called for medical and police
assistance.

Police
arrived and discovered evidence of the assault throughout the apartment. They found a substantial quantity of blood
pooled in the hallway where the manager had pulled the victim. They found that a large quantity of blood had
soaked through two comforters to cover a large section of the carpet in the
bedroom. They found the bloody,
partially crushed beer can with gripping indentations on the bedroom
floor. They found small pieces of what
appeared to be human flesh on the bathroom wall and tub, along with blood
splatters on the walls and ceiling. And
they found blood-soaked towels on the bedroom and bathroom floors.

Emergency
services personnel took the victim to the hospital, where she was airlifted from
Winona to the
Mayo Clinic for emergency treatment for her significant vaginal injuries and
blood loss. A victim impact statement
speaks of her substantial physical and psychological damage.

The state filed a delinquency petition against X.T.X.
alleging that he committed first-, second-, third- and fourth-degree criminal
sexual conduct causing personal injury to a physically helpless person, aided
and abetted first- and third-degree criminal sexual conduct against a
physically helpless person, furnished alcohol to a minor, and consumed alcohol
as a minor. The state also moved the district
court to certify the proceeding to prosecute X.T.X. as an adult.

The probation officer’s study recommended adult certification
based primarily on the seriousness of the offense and the impact on the victim. A corrections agent testified that X.T.X.
presented a high public safety risk. She
relied on X.T.X.’s failure to report the crime, his leaving the apartment, and
the level of violence involved. A psychological
and psychosexual evaluation of X.T.X. concluded that X.T.X. does not suffer
from mental illness or disorder, does not exhibit a high risk for substance
abuse, does not present a high risk of danger to public safety, and has a low
risk of engaging in future sexual misconduct.
Still, the report recommended adult certification because of the limited
period of time available for treatment and programming if X.T.X. was placed under
extended juvenile jurisdiction (EJJ), which would terminate when X.T.X. reaches
age 21.

The district court granted the state’s motion to certify the
proceeding so that X.T.X. would be tried as an adult. The court addressed each statutory factor and
concluded that X.T.X. failed to rebut the presumptive certification by clear
and convincing evidence that retaining the matter in juvenile court would serve
public safety. The court also concluded
that although the consequences under EJJ are significant and the potential
benefit to X.T.X. is substantial, there would not be sufficient time to monitor
X.T.X.’s behavior and progress adequately under EJJ to ensure public safety,
and the benefits of EJJ are outweighed by the benefits of certification. This appeal follows.

D E C I S I O N

X.T.X. challenges the district court’s decision to certify
the proceeding to treat him as an adult.
District courts are given considerable latitude in determining whether certification for adult prosecution is appropriate, and this
court will not reverse a determination to certify unless
the district court’s findings are clearly erroneous so as to constitute an abuse of that discretion. In re
Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). On an appeal from a certification order, we
presume that the factual allegations in the delinquency petition and the charges
against the juvenile are true. In re Welfare of U.S.,
612 N.W.2d 192, 195 (Minn.
App. 2000).

Without dispute, the statutory criteria for presumptive
certification have been met. See Minn. Stat. § 260B.125, subd. 3
(2004) (presuming adult certification if juvenile is 17 years old while allegedly
committing offense that would result in presumptive commitment to prison). And because the district court found probable
cause to support the charges, the burden shifted to X.T.X. to rebut this
presumption with clear and convincing evidence that retaining the proceeding in
the juvenile court serves public safety.
Id.
If a juvenile fails to rebut the presumption by clear and convincing
evidence, certification is mandatory. Id.

X.T.X. argues that he rebutted the presumptive certification
by showing that he is not a risk to public safety. Specifically, he claims that the district
court erred by finding that there was insufficient time under EJJ to monitor
his behavior and to ensure public safety.
He also challenges the district court’s finding that the benefit to the
community from certification outweighed the benefit to him from EJJ.

The district court must weigh six factors to determine
whether public safety is served by certification: (1) the seriousness of the alleged offense in
terms of community protection, including aggravating factors, such as the impact
on the victim; (2) the child’s culpability, including the involvement in the
planning and carrying out of the offense; (3) the child’s prior record of
delinquency; (4) the child’s programming history; (5) the adequacy of
punishment or programming available in the juvenile justice system; and (6) the
dispositional options available. Id.,
subd. 4 (2004). The statute
mandates that greater weight be given to the seriousness of the offense and to
the juvenile’s prior record than to the other factors. Id. The certification statutes emphasize public
safety rather than treatment options. State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998). We find that the district court properly
addressed all six statutory factors without giving undue focus on any one in
its certification order. And we hold that
the court’s finding that X.T.X. failed to rebut the presumptive certification
by clear and convincing evidence is not clearly erroneous.

1. Seriousness of the Offenses

X.T.X. does not dispute that the offense was serious, and he argues
instead that the district court failed to properly analyze seriousness in relation
to community protection. In In re Welfare of H.S.H., 609 N.W.2d 259,
262 (Minn. App. 2000), this court reversed a certification order because the
district court failed to explain how the seriousness of a three-day
check-forgery spree supported certification in relation to community
protection. There, we noted that because
certification cases generally involve violent crimes against persons, the risk
to public safety is often clear. Id. X.T.X. claims that his behavior was an
isolated incident and, because he is at a low risk to sexually reoffend, he is
not a risk to public safety. But although
the psychologist testified that he did not believe that X.T.X. needs sex-offender
treatment, both certification studies noted that the seriousness of the felonies
weighs heavily in favor of certification.
The corrections agent testified that X.T.X. was more concerned about the
charges than about the victim. The
certification study noted the substantial psychological and physical impact on
the young victim. As indicated, victim
impact is an aggravating circumstance that bears on seriousness. And the impact on the victim is not the only
aggravating circumstance here. X.T.X. allegedly
committed the assault in line with three people who actively participated, and
the victim was particularly vulnerable because she was incapacitated. SeeMinn. Sent.
Guidelines II.D.2.b(1), (10) (identifying reduced mental capacity and group
criminal activity as aggravating factors for sentencing purposes). The district court noted that X.T.X. acted in
concert with others in sexually assaulting the victim and did nothing to help
her or limit the danger despite knowing that others had engaged in and would
continue the assault. These factors bear
strongly on community safety. X.T.X. has
not demonstrated that this factor, which must be assigned greater weight, argues
against certification. The district
court did not abuse its broad discretion in considering this factor in favor of
certification.

2. Juvenile’s Culpability

The district court’s determination concerning the second
factor, personal culpability, also suggests public safety concerns. The district court found that X.T.X.
knowingly and voluntarily participated in the sexual assault and is fully
culpable. X.T.X. does not dispute this,
but he notes that the record suggests that he left before the victim was
seriously injured with the beer can.
This assertion ignores that he was the third in a series of four offenders
in line to sexually assault the unconscious juvenile victim. X.T.X. also admitted pouring brandy for her,
which she consumed until she lost consciousness, facilitating the assault. The record amply supports that X.T.X. is
fully culpable as an active participant in carrying out the abuse in concert
with the others, and this factor favors certification.

3. Juvenile’s Prior Record of Delinquency

X.T.X. points out that he has no prior record. He argues that the district court abused its
discretion by not giving this factor greater weight as required by the statute. The state concedes that this factor weighs
against certification but argues that it does not alone require retention as a
juvenile proceeding.

The district court noted that X.T.X. has no juvenile record
and that the certification study indicated that he had no behavioral problems
at home, school, or in the community. Although
the court did not expressly acknowledge this factor’s greater weight, it also
did not indicate that it gave greater weight to the seriousness of the
offense. Additionally, balancing the
public safety factors “is not a rigid, mathematical equation and juvenile
courts should have the discretion to weigh the factors in the context they are
presented.” In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn. 2000).
The supreme court further explained the district court’s broad discretion
to weigh the factors:

Although three factors may
favor designation and three not, that does not mean one of the factors cannot
counsel so strongly for designation as to justify that conclusion. Similarly, that two factors are indicated by
the statute as carrying more weight does not mean that another factor cannot
tip the balance in favor of or against designation when those two factors
cancel each other out.

Id.
at 438 n.2. X.T.X. points to nothing in
the record to convince us that the district court failed to give greater weight
to X.T.X.’s lack of a juvenile record than to other factors.

4. Juvenile’s Programming
History

The district court considered
the fourth factor and found that X.T.X. has no programming history because he
has never been in therapeutic counseling or placement. It also found that X.T.X. would likely be
amenable and suitable to programming available in the juvenile system. The state argues that this factor weighs
against rebuttal of presumptive certification because the district court also
noted that the amount of time available to deliver suitable programming is
insufficient. But the limited
programming time under a juvenile proceeding is a finding applicable instead to
the fifth factor. When it is undisputed
that the juvenile has not previously participated in any programming, this factor cannot weigh in favor of certification. In re
Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998). It is unclear from the record the extent to
which the district court weighted this factor in favor of certification, but we
agree with X.T.X. that this factor does not favor certification.

5. Adequacy of Punishment or Programming in
Juvenile System

X.T.X. challenges the district court’s finding regarding the
adequacy of punishment or programming in the juvenile system. The district court found that two long-term
juvenile programs were available, one of which had specific programming for EJJ
juveniles in a secure facility. The
psychologist testified that three years would be preferable and that two years
was the minimum to ensure that the programming could adequately address X.T.X.’s
behavior and ensure public safety. At
the time of the court’s order, X.T.X. was 18 years, 5 months old, so he could
have remained in the juvenile system under EJJ for only 2 years and 7 months,
within the minimum requirements suggested by the psychologist but not within
the preferable range. While it appears
that the district court found the available programming adequate, the court also
found that the amount of time available to deliver suitable programming to X.T.X.
was insufficient. The court’s finding is
not clearly erroneous. The district court
was not required to rely on the psychologist’s opinion, and it could consider
the time limitations for programming in the juvenile system. See
H.S.H., 609 N.W.2d at 263 (noting that juvenile’s strong need for treatment
longer than that available under juvenile jurisdiction weighed in favor of
certification); see also St. Louis County
v. S.D.S., 610 N.W.2d 644, 650 (Minn. App. 2000) (finding that programming
options in juvenile system were outweighed by seriousness of alleged offenses,
which must be given greater weight and which, when
considered in light of other factors, favored certification).

6. Dispositional Options Available

The district court properly considered the final factor, the dispositional
options available. The two other options
beside juvenile jurisdiction were EJJ and adult certification. But in this case, as discussed, although the
court found that the benefit to X.T.X. from EJJ is substantial, EJJ was not viable
because there would be insufficient time to monitor X.T.X.’s behavior and
progress to ensure public safety. X.T.X.
offers no persuasive basis for us to fault the district court’s consideration
of this factor.

Based on our deference to the district court’s discretionary
factual determinations and the unmet burden on X.T.X. to introduce clear and
convincing evidence to rebut the presumption of adult certification, X.T.X.
fails to convince us that the district court committed reversible error. The district court considered the statutory factors and did not abuse its broad discretion by determining that X.T.X. should be tried
as an adult.